Monday, February 20, 2017

Bankruptcy, constitutional law, international family law issues, and wild caught shrimp sauteed with hot peppers, garlic, and spinach

Finally, I'm back to my blog after getting out from many deadlines and below are some very interesting new decisions:

Flo & Eddie v. Sirius XM Radio
Court: U.S. Court of Appeals for the Second Circuit
Docket: 15-1164        
Opinion Date: February 16, 2017
Areas of Law: Copyright
Sirius appealed the district court's order denying its motions for summary judgment and reconsideration in regard to Flo & Eddie's copyright infringement suit. The court certified a significant and unresolved issue of New York law that is determinative of this appeal: Is there a right of public performance for creators of pre-1972 sound recordings under New York law and, if so, what is the nature and scope of that right? The New York Court of Appeals answered that New York common law does not recognize a right of public performance for creators of pre-1972 sound recordings. In light of this ruling, the court reversed the district court's denial of summary judgment and remanded with instructions to grant Sirius's motion for summary judgment and to dismiss the case with prejudice.

Vergara Madrigal v. Tellez
Docket: 16-50149      
Opinion Date: February 16, 2017
Areas of Law: Family Law, International Law
Father initiated proceedings for the return of his two young daughters under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. The children resided in Mexico City until Mother took them on vacation and wrongfully detained them in the United States. The district court ordered the children returned to Mexico. The court affirmed the district court's denial of Father's post-judgment motions, concluding that the courts in Mexico, the state of the children's habitual residence, are the appropriate forum to grant relief to address his concerns. The court explained that, subject only to the confines of Mexican law, Mexican courts are free to grant Father full custody over the children and to prohibit or restrict their international travel, and there is no international legal void that requires the Convention’s intervention. In regard to Mother's challenge of the district court's denial of her motion to vacate the Original Return Order, the arrest warrant for Mother's arrest does not establish clear and convincing evidence of a grave risk of harm to the children. Therefore, the court affirmed the district court's denial of Mother's motion to vacate.


Babcock & Wilcox Co. v. Cormetech, Inc.
Court: U.S. Court of Appeals for the Sixth Circuit Docket: 16-3305                   
Opinion Date: February 15, 2017
Areas of Law: Business Law, Contracts
In 2005, B&W entered into a contract to design and construct a Selective Catalyst Reduction (SCR) system to control emissions at KCP&L’s coal-burning Kansas power station. B&W purchased catalyst modules for the SCR from Cormetech, which guaranteed that the catalyst would perform under specified conditions for 24,000 operating hours before needing replacement. KCP&L began operating the SCR in April 2007. A June 2007 performance test revealed that the rate of “ammonia slip” was higher than expected, but within guaranteed limits. B&W advised Cormetech of the issue. Cormetech began testing. A September 2008 letter from KCP&L advised that it was B&W’s obligation to “generate a corrective action plan.” After KCP&L determined in 2008 that the catalyst was at the end of its useful life, it contracted directly with Cormetech for a replacement, which also failed before the end of its expected life. KCP&L’s claim against B&W resulted in a $3.5 million meditation settlement. B&W sued Cormetech; the case was dismissed without prejudice pursuant to the parties’ tolling agreement while B&W pursued mediation with KCP&L. After those efforts resulted in the settlement, B&W reinstituted the action within the agreed period. Following discovery the district court granted Cormetech summary judgment, finding a breach-of-warranty claim time-barred and that an indemnification claim failed for lack of evidence that B&W’s losses resulted from a defect in goods or services purchased from Cormetech. The Sixth Circuit vacated, finding that the court erred by failing to view the record in the light most favorable to the nonmovant.

Lake v. Wexford Health Sources, Inc.
Court: U.S. Court of Appeals for the Seventh Circuit
Docket: 15-2360        
Opinion Date: February 15, 2017
Areas of Law: Civil Rights, Constitutional Law, Medical Malpractice
Lake, a prisoner at Illinois’ Hill Correctional Center, claimed, in his suit under 42 U.S.C. 1983, that Dr. Jackson, the prison’s dentist had refused to send him to an outside dentist to extract a decayed tooth that was causing him pain. Lake claimed that Wexford, the contractor serving the prison, has policy of withholding medical care to save money. Although Dr. Jackson assured him that his mouth could be numbed successfully, Lake refused to let her pull the tooth and complained to Wexford that he was suffering needlessly because of its refusal to provide him with outside treatment. Lake later agreed to let a different prison dentist extract the tooth. A local anesthetic was used during the extraction, but Lake complained afterward that the procedure had been painful. The Seventh Circuit affirmed summary judgment, rejecting Lake’s claims, and agreeing that a jury would have to find that Dr. Jackson had been exercising professional judgment in predicting that administering a local anesthetic would enable her to extract the decayed tooth without inflicting significant pain.

Jones v. Coleman
Court: U.S. Court of Appeals for the Sixth Circuit
Docket: 16-5908        
Opinion Date: February 15, 2017
Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Election Law
White County parents formed the Association for Accurate Standards in Education (AASE) to oppose another group advocating for removal of a social studies textbook that includes discussion of Islam. Eight part-time volunteers comprise AASE. It does not have a separate bank account and does not keep regular records. Five or six people have donated to AASE. No individual donation has exceeded $200; total donations have not reached $500. Seats on the Board of Education were up for election in 2016. AASE parents wanted to support and oppose candidates through AASE. They did not want AASE to make direct campaign contributions, but wanted AASE to spend less than $250 on independent expenditures, including yard signs, stickers, and brochures. They learned that the Tennessee Registry of Election Finance had fined Williamson Strong, an unincorporated group that disseminates information about candidates and issues in Williamson County, $5,000 for failing to certify a treasurer or file financial disclosure statements under Tenn. Code 2-10-102(12)(A), which defines a political campaign committee as: A combination of two or more individuals . . . to support or oppose any candidate. They sued the Registry’s officials in their official capacities under 42 U.S.C. 1983, claiming that the Act violates their First Amendment, equal protection, and due process rights. The district court stayed the case pending the outcome of the state administrative proceedings in the Williamson Strong case. The Sixth Circuit reversed. Abstention was improper in this case, in light of the Act’s alleged chilling effects.


Appling v. Lamar, Archer & Cofrin, LLP
Docket: 16-11911      
Opinion Date: February 15, 2017
Areas of Law: Bankruptcy
Debtor made false oral statements to his lawyers, Lamar, Archer & Cofrin, LLP, that he expected a large tax refund that he would use to pay his debt to the firm. Debtor filed for bankruptcy after Lamar obtained a judgment for the debt. Lamar then initiated an adversary proceeding to have the debt ruled nondischargeable. The bankruptcy court and the district court determined that the debt could not be discharged under 11 U.S.C. 523(a)(2)(A) because it was incurred by fraud. The court reversed and remanded, concluding that debtor's debt to Lamar can be discharged in bankruptcy. In this case, because a statement about a single asset can be a "statement respecting the debtor's . . . financial condition," and because debtor's statements were not in writing, his debt can be discharged under section 523(a)(2)(B).

Lunsford, Sr. v. Process Technologies Services
Docket: 16-11578      
Opinion Date: February 15, 2017
Areas of Law: Bankruptcy
After Process Technologies obtained a judgment in state court against debtor for violations of state securities laws, debtor filed for bankruptcy. Process Technologies then filed an adversary proceeding, arguing that 11 U.S.C. 523(a)(19)(A) barred debtor from discharging the debt. The court concluded that debtor cannot discharge his debt because the bankruptcy court made a finding of fact that debtor violated securities laws and, in the alternative, section 523(a)(19)(A) applies irrespective of whether debtor violated securities laws. The court also concluded that debtor is not entitled to leave to amend his complaint. Accordingly, the court affirmed the bankruptcy court's order that excepted the debt from discharge and denied leave to amend.

Edward Lewis Tobinick, MD v. Novella
Docket: 15-14889      
Opinion Date: February 15, 2017
Areas of Law: Business Law, Constitutional Law
This case stems from a dispute between two doctors regarding the medical viability of a novel use for a particular drug. The Tobinick Appellants filed suit against the Novella Appellees, and Yale, challenging Dr. Novella's article criticizing Dr. Tobinick's novel treatments. The Tobinick Appellants then filed an amended complaint to add allegations relating to Dr. Novella's second article that was published just nine days prior. The court concluded that, because the Tobinick Appellants have not demonstrated a probability of success on the actual malice issue, the district court did not err in granting Dr. Novella's special motion to strike the state law claims pursuant to California's anti-SLAPP statute, Cal. Civ. Proc. Code 425.16(a); even though Dr. Novella had not yet filed his answer, the district court did not abuse its discretion in twice denying the Tobinick Appellants' motion for leave to amend the operative complaint because it properly sought to prevent an undue delay caused by the Tobinick Appellants' last-minute attempts to amend their complaint; the district court did not abuse its discretion in denying each of the Tobinick Appellants' discovery-related requests for relief; and the court rejected the Tobinick Appellants' Lanham Act, 15 U.S.C. 1125(a) claims. Accordingly, the court affirmed in all respects.

Wollschlaeger v. Governor of the State of Florida
Docket: 12-14009      
Opinion Date: February 16, 2017
Areas of Law: Civil Rights, Constitutional Law
This case concerns certain provisions of Florida's Firearms Owners' Privacy Act (FOPA), Fla. Stat. 790.338, 456.072, 395.1055, & 381.026. The district court held that FOPA's record-keeping, inquiry, anti-discrimination, and anti-harassment provisions violated the First and Fourteenth Amendments, and permanently enjoined their enforcement. Exercising plenary review and applying heightened scrutiny as articulated in Sorrell v. IMS Health, Inc., the court agreed with the district court that FOPA's content-based restrictions—the record-keeping, inquiry, and anti-harassment provisions—violate the First Amendment as it applies to the states. The court explained that, because these three provisions do not survive heightened scrutiny under Sorrell, the court need not address whether strict scrutiny should apply to them. The court concluded, however, that FOPA's anti-discrimination provision—as construed to apply to certain conduct by doctors and medical professionals—is not unconstitutional. Finally, the court concurred with the district court's assessment that the unconstitutional provisions of FOPA can be severed from the rest of the Act. Accordingly, the court affirmed in part, reversed in part, and remanded so that the judgment and permanent injunction can be amended in accordance with this opinion.

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